Tenants Behaving Badly in Condominiums
By Quintin Johnstone, Founder & CEO of Samsonshield Inc. / Riskboss Inc.
As described by Wikipedia, “Elephant in the Room” is an American English metaphorical idiom for an obvious problem or risk that no one wants to discuss.” Controversial yes; however, very necessary conversation(s) here at Riskboss Magazine. In every publication, Riskboss Magazine will address the latest Elephant in the Room to clearly answer hard asked questions.
Reader Commentary from Our Last Edition
“I am a responsible condominium owner, and I rent out my unit to a very responsible tenant. I am pretty upset with irresponsible tenants in our building who have now created a Facebook page full of negative commentary about the property manager and the Board, mostly untrue. While I believe in the rights of tenants, this group is taking it too far. Hopefully you can write something about what is and what is not appropriate in condominiums with respect to tenants.”
Dennis V., Condominium Owner
Riskboss: Thank you for your comments. This is another very hot and controversial topic. Thanks for the idea. We will be writing about this in our next edition under the Elephant in the Room section. Stay tuned!
Thanks to David for the Reader Commentary and the idea for this article. Another very tough topic but that’s why we are here, to tackle those topics that most will not discuss.
The best way to tackle this issue is to talk about tenants versus owners in condominium communities to help clear up some common misconceptions.
- Yes, tenants have rights in condominiums that are guaranteed by the Ontario Residential Tenancies Act
- Tenants in condominiums also have to abide by obligations in the site Declaration and building Rules in keeping with the Ontario Condominium Act
- When a lease term ends in Ontario, the tenancy doesn’t necessarily end. The tenant has the right to either enter into a new lease or move to a month-to-month tenancy (Tenant Perpetuity) – it’s their choice
- When an owner leases a unit, they give up certain access rights to the property:
- They cannot enter the unit without permission
- They cannot use the parking space
- They cannot use the gym or other facilities
- Tenants have the same ability as owner-occupiers for the use of common elements of the property
- In most condominiums, tenants can even become part of the Board (Unless excluded by a building Rule)
- Property management cannot and should not manage tenants on behalf of owners
- Owners should not expect property management to communicate directly with misbehaving tenants on their behalf. Owners are responsible for their tenant’s behaviour.
Condominiums can regulate tenancies under the Ontario Condominium Act:
- The Condominium Act allows Boards to create greater restrictions to some local By-laws and legislation
- Short term rentals, although legal in some jurisdictions, can be eliminated in condominiums by way of building Rules (e.g. six-month or one-year minimum lease standards)
- Maximum unit capacity allowance for occupancy can be restricted (in keeping with local By-Laws)
- Prohibition of tenant election to the Board can be achieved (Owners only Rule)
- Condominiums can limit the number of pets and also, the size of pets
It is important to differentiate the role property managers play for tenants versus owners. Assisting tenants with daily routine issues such as move-ins/outs, registering tenants, booking amenities, and providing access fobs, etc., is always acceptable. Managing tenants on behalf of owners is another matter. Some owners ask property managers, “So what am I paying maintenance fees for if you won’t manage my tenant for me?” Maintenance fees are paid to run the condominium corporation, not private business relationships such as tenancies, private tradespeople, private cleaners, etc.
The relationship between an owner and a tenant does not include, nor should it include, the condominium corporation, the Board or property management. Some property managers and even some Boards try to intervene on behalf of the owner(s) to manage bad tenants and aggressive tenant groups, but this is never recommended.
Communication to tenants from the corporation and property management should always be directed through the owner(s), as this is a business relationship that cannot be interfered with.
Most tenant issues are nuisance based, such as noise, off-leash dogs, parties, verbal abuse of service providers or smoking. However, they can be more serious incidents such as threats, relationship abuse, and hoarding, creating unsafe living environments.
The issue with bad tenants often starts long before they move in. Anxious condominium owners sometimes fail to do their due diligence on prospective tenants. Once a tenant is in a unit, it is very difficult to get them out and, most often, a very lengthy and costly affair.
Most condominiums’ declarations impose a duty for owners to provide a lease of their tenants thirty days after they move in. It does nothing to assist the corporation in managing a tenant that has already moved in who is a registered tenant. Condominium corporations should create rules regarding the registration of all residents in a unit before they move in.
Registration should always include photo identification and detailed rental applications. In Ontario, it should also include the provincially regulated standard lease form. Before moving in, tenants should get a copy of the Building Rules and the Welcome Package outlining all the community’s expectations. They also must sign off having received these documents in advance of moving in.
Let’s talk a little about social media and how it affects condominium communities. Social media has changed life for everyone and how we communicate. Chat rooms are an excellent source of social discord. In condominium circles, some groups have taken on a life of their own, and some group participants can and do take it too far.
It has been demonstrated that some in these groups do not even live in the community. They join these groups to exact instant justice/ revenge by defaming others, often slandering the Board and property management. Some also try to sway others with their own view of the world, often contrary to obligations set out in law. It is never acceptable under any standard.
Tony Bui, a condominium lawyer, says:
“No doubt, tenants and occupants are still important members of a condominium community. Constructive input and kind suggestions should always be welcomed, but it is never appropriate for tenants to try to dictate or govern how a condominium is run. Not to compare condos to prisons, but you should never “let the inmates run the asylum”, so to speak. Tenants are not owners with a financial or equitable stake in the condominium, so it makes no sense for them to try to manage a condo. The only people who should have a say are the unit owners. As far as tenants are concerned, their relationship is with their landlord, but they are still subject to the condo’s Declaration, By-laws and Rules.”
In fact, Riskboss, while conducting comprehensive and independent risk assessments of condominium communities, highly recommends a centralized point and channel for all communication, that being the property management office and not online forums. All correspondence should be channelled through a centralized source to ensure all information’s accuracy, consistency, and reliability.
Complaints must always be made in writing and from a recognizable source. Complaints from tenants can be managed with the assistance of their owners to ensure that property management, the corporation and the Board does not get dragged into private business relationships.
As most active Board members know, being on a Board in Ontario comes with clearly defined responsibilities as set out in the Condominium Act. In fact, as a minimum standard, Board members are required to take a course within six months of their election as a director as regulated by the Condominium Authority of Ontario (CAO).
The CAO courses clearly outline when a person is acting as a director and when they are not. So, when you happen upon a director in an elevator, and you engage in a conversation about corporation business, you are really talking to another resident. That person is only a director when engaged or actually in a corporation Board meeting.
As described in Riskboss Site Assessment recommendations,
“The practice of command and control being delivered by a noncentralized through a multilayered process (Management, the Board, and Service Providers all receiving information) is difficult to administer to ensure clear, unfiltered direction and feedback. Single source and centralized direction provide three things: accuracy, consistency, and control. In all highly effective organizations: Directors and Board Members direct through policy; Managers manage on that policy; Supervisors supervise under direction of Managers, and Workers do the work under supervision of the Manager. Property Managers should always be the centralized, single point of contact in all multi-residential settings.”
Lastly, let’s focus on what happens when a tenant continues to behave badly. I have been involved in many investigations and have been called to testify at tenancy hearings regarding fraudulent tenants who claim to be something they are not and tenants breaking building Rules. The unfortunate reality is that when a tenant goes bad, it can cost thousands of dollars to have them evicted while that same tenant can remain in the property as described in the article in this edition cowritten by Tony Bui and An Nguyen from Gardiner, Miller, Arnold, LLP.
Property management will continue to document occurrences of breaches of the buildings Rules or the Declaration to the owner. The owner, if unable to have the tenant stop, progressive actions will likely be taken including a lawyer’s letter paid for by the owner.
In extreme circumstances, and after several attempts, the corporation will engage its lawyer to commence legal proceedings to obtain a compliance order. The corporation will pay for these proceedings, but will recover all costs usually from the owner. These types of scenarios are often long and very expensive. The best advice that Riskboss recommends to all condominium owners is to ensure all renters are properly screened, vetted and come with reliable references prior to signing any lease and handing over the keys to your valuable asset.